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More on Dimaya

Courtesy of Sentencing Resource Counsel Sissy Phleger. (See yesterday’s post for a quick take on Dimaya‘s implications for the Second Circuit’s holding, in United States v. Elvin Hill, that § 924(c)(3)’s residual clause is not constitutionally vague).

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Today, in Sessions v. Dimaya, the Supreme Court struck down the residual clause in 18 U.S.C. § 16(b) as unconstitutionally vague. Kagan authored the opinion, joined by Ginsburg, Breyer, Sotomayor, and in operative part, Gorsuch. Though it turned on the constitutionality of § 16(b)—a broadly applicable criminal statute—the case itself was an immigration proceeding in which the petitioner was challenging his pending deportation for an aggravated felony. The definition of aggravated felony in the Immigration and Nationality Act includes crimes of violence defined by § 16(b). 8 U.S.C. § 1101(a)(43)(F).

Section 16(b) defines “crime of violence” as any felony “that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” This now-invalidated definition is identical to the commonly-used residual clause in § 924(c)’s prohibition on possessing a firearm in the course of a crime of violence (a point noted by Chief Justice Roberts in dissent).

The opinion of the Court described its holding as a “straightforward application” of the “straightforward decision” in Johnson v. United States, 135 S.Ct. 2551 (2015). The Court identified two features which it said had controlled the Johnson decision striking down the ACCA’s residual clause in § 924(e)(2)(B), and which it determined applied with equal force to the similar language in § 16(b). First, both statutes require that the assessment of the risk posed focus onthe “ordinary case” of an offense, rather that the particular facts of a particular case. As it had in Johnson, the Court stressed the problematic nature of this inquiry, especially because judges are given no guidance as to how to determine what constitutes the ordinary case. Second, both statutes contain an ill-defined risk threshold—“substantial risk” in § 16(b), and “serious potential risk” in § 924(e)(2)(B). While the Court, as it had in Johnson, stressed that qualitative standards may well pass constitutional muster in the general course, such a standard was fatally vague where combined with the already vague ordinary case inquiry.

Gorsuch’s only notable difference from the plurality came in a distinction over the application of void-for-vagueness to immigration removal proceedings. The Government argued, among other things, that more vagueness was tolerable in civil immigration proceedings than in criminal cases, and thus Johnsondid not dictate the outcome of the case at bar. Both the plurality opinion of Kagan, Ginsburg, Breyer, and Sotomayor, and the concurring opinion of Gorsuch rejected this argument. The plurality relied on the “grave nature” of removal proceedings, and on Jordan v. De George, 341 U.S. 223 (1951) to reject the Government’s argument. It focused on the deportation consequence itself as a “drastic measure, often amounting to lifelong banishment or exile.” Gorsuch’s concurrence, on the other hand, was more broadly skeptical of the Government’s criminal/civil distinction for assessing the Constitution’s tolerance of vagueness, identifying numerous civil determinations with weighty consequences. He questioned, “Why, for example, would due process require Congress to speak more clearly when it seeks to deport a lawfully resident alien than when it wishes to subject a citizen to indefinite civil commitment, strip him of a business license essential to his family’s living, or confiscate his home?”

Gorsuch’s concurrence also includes a strong defense of the void-for-vagueness doctrine under orginalist principles as “a faithful expression of ancient due process and separation of powers principles the framers recognized as vital to ordered liberty.”

Roberts, joined by Kennedy, Thomas and Alito, dissented on various textual grounds, emphasizing “significant textual distinctions between §16(b) and the ACCA residual clause.” Thomas, joined by Kennedy and Alito, wrote separately to question the void-for-vagueness doctrine itself, and the categorical approach.